All posts by Sandulli Grace Staff

Mass Public Employees Have Right To Union Attorney During Interview

The Massachusetts Appeals Court strengthened the ability of public sector unions to defend members accused of misconduct by affirming that employees have a right to be represented by a union attorney during an investigatory interview. The case is Town of Hudson vs. Labor Relations Commission, No. 06-P-1191 (July 12, 2007)
Under Massachusetts Public Sector Collective Bargaining Law, Chapter 150E, public employees in a bargaining unit have a right to union representation during an interview that may lead to discipline for the employee being interviewed. This is commonly referred to as a “Weingarten” right, based upon the landmark case of National Labor Relations Bd. v. J. Weingarten, Inc., 420 U.S. 251 (1975). While Weingarten arose in the context of private sector labor law, the Massachusetts Labor Relations Commission, which administers public sector labor law for state, county and local employees, has applied this doctrine to public employees. The Supreme Judicial Court has upheld the application of Weingarten to public employees in the past. Here, the Appeals Court quoted the Weingarten case’s rationale for locating this right under federal labor law:

"This is true even though the employee alone may have an immediate stake in the outcome; he seeks ‘aid or protection’ against a perceived threat to his employment security. The union representative whose participation he seeks is, however, safeguarding not only the particular employee’s interest, but also the interests of the entire bargaining unit by exercising vigilance to make certain that the employer does not initiate or continue a practice of imposing punishment unjustly. The representative’s presence is an assurance to other employees in the bargaining unit that they, too, can obtain his aid and protection if called upon to attend a like interview.”

In Town of Hudson, the only dispute was whether the right to union representation includes a union attorney. The Court had little trouble in agreeing with the Commission that this right extends to attorneys retained by the Union. It held: “Therefore, for purposes of representation at a Weingarten interview, we see no distinction between representation by a union representative or business agent and representation by a union attorney." The Court was careful to note that this case did not involve a private attorney or outside counsel not involved in the regular collective bargaining relationship.

As a result of this decision, if the public employee requests the union-assigned attorney be present, the public employer has three options: (1) grant the request; (2) discontinue the interview; or (3) offer the employee a choice between continuing the interview unaccompanied by a union representative and having no interview at all. The employer cannot insist on continuing the interview without providing these options.

Please note, this decision does not require unions to provide members with legal representation. The choice of representative – whether a local official, bargaining agent, attorney, or no representative at all – is left to each individual union for each case and is guided generally by the union’s duty of fair representation. It also does not permit the union to impose a representative where the employee declines representation.

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Public Employee May Sue Employer For Statutory Benefit When Union Contract Is Expired

Under G. L. c. 126, §18A, jail employees and corrections officers are entitled to “assault pay” if injured by a prisoner or patient in their custody. The benefit is roughly analogous to injured-on-duty pay for police officers and firefighters under G.L. c.41, §111F (§111F benefits apply if the disabling injury is work-related, not just prisoner-related).

As with police union contracts that mention §111F benefits, the applicable collective bargaining agreement for the corrections official in the Appeals Court decision of Presby vs. Commissioners Of Bristol County, 06-P-1499 (July 2, 2007) made reference to assault pay benefits. The officer was injured while running to quell a fight among inmates. He then applied for assault pay, which the employer denied. The employer also denied a grievance filed by the officer. As the union contract was expired at the time and the Union could not demand arbitration of the grievance, the corrections officer then sued in state court for assault pay benefits.

On some occasions, an employee seeking benefits under a state law that also is referred to in the collective bargaining agreement must exhaust the grievance/arbitration procedures before going to court. For instance, there are some decisions ruling that a public safety officer seeking §111F benefits cannot skip the grievance route and proceed directly to court. Here, the Appeals Court ruled that there is an exception to this general rule when the contract has expired. Therefore, the employee’s suit was proper.

The Appeals Court went further and ruled that the officer was entitled to assault pay benefits because his injury arose in the course of responding to prisoner violence, even if no violence was inflicted upon him. This decision may be useful to off-duty public safety officers injured when attempting to respond to a call for service from the employer.

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The Truth About Lie Detectors – Bad News & Good News In Polygraphing Police Officers

The Bad News – Massachusetts Appeals Court Rules That Chief May Force Officer To Submit To Polygraph Even If Junk Science And Not Pursuant to A Criminal Investigation.

In a textbook example of letting “the exception swallowing the rule,” the Massachusetts Appeal Court has ruled that a police officer can be forced to submit to a lie detector examination under threat of discipline in most circumstances. This case further pushes the limits of when a police chief can require that an officer undergo a lie detector despite the fact that the legislature has outlawed the use of lie detectors in all but the most limited circumstances for almost fifty years. Sandulli Grace, PC, on behalf of the Massachusetts Coalition of Police (MCOP), has joined the fight to overturn this ruling.

The Massachusetts General Court first outlawed the use of lie detectors on the job in 1959. Then, as now, the legislature knew that lie detectors are unreliable, and that employees should not be forced to choose between their jobs and being forced to submit to a high-tech version of a tea leaf reading. The lie detector prohibition, codified at General Laws Chapter 149, § 19B, contains a very limited exception that allows for the use of “lie detector tests administered by law enforcement agencies as may be otherwise permitted in criminal investigations.” For years, the courts have allowed tests only when given as part of an ongoing criminal investigation of the incident in question. And the Supreme Judicial Court has ruled that polygraph tests are inadmissible in court because their reliability and credibility is unproven.

Unfortunately, the Appeals Court turned that requirement on its head earlier this month in the case Furtado v. Town of Plymouth, 69 Mass.App.Ct. 319 (June 11, 2007). In Furtado, the court ruled that the officer in question could be forced to take a lie detector test under threat of discipline even there was no ongoing or contemplated criminal investigation. The Chief obtained transactional immunity against prosecution, meaning that the officer was compelled to give a statement. The court ruled that the case fell within the exception to the law since “allegations of criminal conduct” were present – even though the grant of immunity made any criminal charges (and one would therefore assume investigation) impossible.

The impact of the Furtado decision is that Chiefs arguably can require officers to submit to lie detectors whenever there is a possibility of “criminal conduct.” Does the chief think you may have jaywalked? Sit down and strap on the electrodes. This decision confirms the worst suspicions of many police officers that they are second-class citizens under the law: if polygraphs can’t be demanded of all other employees and also can’t be used against criminals – how can police officers be ordered to submit to the junk science examinations and have those examinations used to justify discipline or termination.

We here at Sandulli Grace obviously think that this decision goes against the legislature’s intent in outlawing workplace lie detectors. We have been in contact with the attorneys for Officer Furtado, and MCOP has pledged to help urge the Supreme Judicial Court to overturn this decision.

But Wait, There’s Good News Too! Civil Service Commission Tosses Out Lie Detector Tests

Just two days after the Appeals Court issued Furtado, the Massachusetts Civil Service Commission ruled that a City cannot introduce evidence of a lie detector test in a case charging an officer with lying. The case involved the one-year suspension and demotion of a municipal police sergeant, whose discipline was based in part upon the results of a polygraph examination. Sandulli Grace Attorney Bryan Decker argued that the polygraph evidence, even assuming the test was legal under Furtado, should not be allowed into evidence because lie detector tests are so unreliable as to be (in the words of the Maryland Appeals Court) “incompetent.” In line with the SJC’s decision rejecting the admission of polygraph tests in criminal cases, the Commissioner refused to allow the polygraph evidence in the case, even though the rules of evidence do not strictly apply. The Commission joins other states such as Illinois, Maryland and Ohio that refuse polygraph evidence in administrative hearings when a public employee’s job and reputation are on the line.

The ruling from Commissioner John Taylor was issued from the bench during the hearing, and Commissioner Taylor stated that a full written decision on the polygraph issue would be included in his ultimate decision in the case, which is subject to a majority vote of the five-member panel of Commissioners. We’ll keep you posted.

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Worker’s Comp Agency May Ignore Erroneous Medical Report

Appeals Court has held that the Massachusetts Bureau of Workers Compensation, which administers benefits to employees injured on the job, properly granted disability benefits to an injured truck driver, despite an independent medical report to the contrary. This decision to provide some comfort to injured employees who receive a negative evaluation of their claim from a Bureau-affiliated doctor.

Under Workers’ Compensation law, a person claiming a work-related injury may be required to submit to an independent medical examination. In Robert Dalbec’s Case, 69 Mass. App. Ct. 306 (06-P-358) (June 2007), a tanker truck driver was unable to work after a slip-and-fall injury on the job. The Independent Medical Examiner found that the claimant was capable of returning to unrestricted full-time work. The Administrative Law Judge (Judge), who heard testimony from the claimant about the physical stresses required by the job and his ongoing physical pain, rejected the IME report and awarded partial disability benefits.

The Appeals Court ruled that a negative IME report creates a presumption that the employee is ineligible for benefits. But this presumption, the Court held, can be rebutted simply by critiquing the report and determination that it is unfounded or unreasonable. The Appeals Court agreed that the IME doctor’s report and deposition testimony suffered from several major weaknesses, including a failure to assess the injury in light of the job duties and a failure to conduct critical tests about the employee’s fitness. Whereas the doctor appeared not credible, the Judge found the injured employee to be highly credible and the Judge conducted his own comprehensive analysis of the injuries and the job duties.

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Police Officers Protected Against Negligence Suit

In a recent decision, Ariel v. Town of Kingston (#06-P-825) (June 6, 2007), the Appeals Court affirmed that Massachusetts police officers and their public employers are protected from negligence lawsuits. The Massachusetts Tort Claims Act states that Massachusetts public entities cannot be sued for an alleged "failure to provide adequate police protection, prevent the commission of crimes . . . or enforce any law.” (See General Laws Chapter 258). In this case, the victim of a car crash sued the Town of Kingston, claiming that the negligent direction of traffic by two police officers caused another car to collide with her. The Appeals Court disagreed. “[The] police officers’ direction of traffic on a public way constitutes a form of providing police protection to the public for the risks involved in motor vehicle traffic.” These actions did not qualify as an affirmative promise of police protection. The court’s decision affirms a general understanding of the scope of immunity provided by the MTCA. Because the town and officers were immune from suit under the above language, the Court also found that other provisions of the MTCA did not provide basis for a different claim of negligence.

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Court Awards Another Victory To Police Officers & Fire Fighters Injured In The Line Of Duty.

Last year, the Supreme Judicial Court held that public employers must pay pre- and post-judgment interest on lost earnings when they incorrectly deny a claim for injured-on-duty benefits under Massachusetts General Laws 41, §111F. (see our previous blog entry) In another victory for injured public safety officers, the Appeals Court has affirmed that §111F claims may be subject to arbitration and may be awarded to officers for stress-related injuries. As the arbitrator awarded §111F benefits to an officer who might not otherwise be entitled to him, this case supports arbitration as the most effective means to resolve disputes about whether an officer was legitimately injured-on-duty.

In Town Of Duxbury v. Rossi

(May 15, 2007), an officer’s stress-related hypertension worsened after he argued with his supervisor about swapping shifts. The officer left work immediately following the argument due to elevated blood pressure, but the Town refused to place the officer on paid injury leave. The town’s physician agreed that his stress was work related and that he was not yet ready to return to work. A neutral arbitrator agreed that the injury qualified for IOD pay under the collective bargaining agreement.

The Town asked the courts to vacate the arbitration award. In an example of everything-but-the-kitchen-sink form of argument, the town raised multiple arguments in support of it its appeal. The court rejected every single one.

First the court ruled that the arbitrator properly resolved a dispute about §111F benefits. Second, the Court rejected the Town’s specious argument that the arbitrator’s decision interfered with the Chief’s management rights. This ruling in particular shows that “management rights” is not a magic wand. Third, the court ruled an arbitrator has the power to award §111F benefits even if this award conflicts with the position of the Town’s physician. Fourth, the Court ruled that the arbitrator’s award of benefits does not violate public policy even if the officer was not entitled to §111F benefits for hypertension induced by interpersonal dispute at work. In other words, even if arbitrator made errors of fact and law, the decision must be affirmed. Finally, the court ruled the arbitration decision was not voided by a subsequent court action by the officer addressing his later return to work.

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Mass Public Retirees Prohibited Full-Time Employment With Quasi-Public Employers.

In Pellegrino v. Springfield Parking Authority (May 17, 2007), the Massachusetts Appeals Court affirmed that retirees from Massachusetts public employment cannot work for another state or local public employer in Massachusetts, including quasi-public agencies. Under Massachusetts General Law Chapter 32, § 91, individuals collecting benefits from a state or local retirement program generally cannot be paid for services rendered to another public employer. The limited exceptions to this ban on post-retirement public employment include when a retiree waives his right to retirement allowance during the period of post-retirement enrollment, or when the retiree works no more than 960 hours and earns no more between employment and retirement than the current salary for the position from which the former employee retired.

While the above rule is relatively straightforward, Kathleen Pellegrino argued that this prohibition on post-retirement employment applies only to public retirees who work for the state or local governments and not to public retirees who work for quasi-public entities such as the Springfield Parking Authority. The court disagreed.

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Mass Labor Commission Dismisses Four Cases Filed By Unions

The Massachusetts Labor Relations Commission, which administers the public sector collective bargaining law for municipal and state employees, just released four decisions that dismiss union charges of unfair labor practices. For your consideration, we provide the following brief summary of the key decisions.

COMMONWEALTH OF MASS/COMM’R OF ADMIN. & FINANCE (SUP-05-5174) (March 30, 2007)

In this case involving correctional officers, the Commission holds that an employer’s decision to record investigatory interviews of employees, instead of taking handwritten notes, does not qualify as a change in a term or condition of employment. The Commission also dismissed the charge over the new policy of disciplining employees for refusing to participate in investigatory interviews as there was no evidence that the employer did not do so prior to the policy.

Town Of Tyngsborough & IBPO (MUP-05-4420) (March 7, 2007)

In this case involving IBPO police officers, the Labor Relations Commission strictly interpreted its six-month statute of limitations in a manner that may encourage unions to file more ULP’s and more quickly. Here, the Union filed a ULP charge six months after the parties first discussed changes to the personal leave policy. Because the Union knew of these changes prior to that first meeting, the Commission ruled the charge to be untimely.

The Commission also found that the Union failed to support that the Town made a unilateral change concerning the personal leave and shift-swap policies. First, the union produced no evidence of a past practice that entitled patrol officers to use a personal leave whenever request. Second, the Union offered no evidence of the shift-swap practice in existence prior to the Town’s adoption of the policy.

CITY OF PITTSFIELD (MUP-05-4480) (March 7, 2007)

In this case involving IBPO police officers, the Union charged that the City’s implementation of a flex time scheduled for an in-service training officer violated the Law. The Commission disagreed and dismissed the charges. First, the Commission found no evidence that a flex time schedule actually was implemented. Second, the Commission found no evidence that the employer dealt directly with the officer about scheduling. Third, the absence of a new flex time schedule meant that the employer had no obligation to bargain. Finally, the Commission found no support for the claim that the employer refused to provide information requested by the Union. It noted that the Union failed to produce a copy of any request or describe the information not provided.

TOWN OF AGAWAM (MUP-05-4479) (March 30, 2007)

Here, the Commission dismissed the Union’s claims that the Town violated the law when it negotiated wage increases individual with three members of the bargaining unit. As wages are a mandatory subject of bargaining and the union is the exclusive bargaining agent, an employer cannot negotiate or implement changes to individual employee pay without providing notice and an opportunity to bargain first to the union. However, the undisputed evidence showed that the parties had a longstanding practice of permitting the Town to negotiate directly with individual employees and the Union had never communicated a change in its position on this practice. The Commission dismissed the charge.

Federal Court Orders Mass. Town (Again ) To Pay Police OT

In an ongoing battle between the Town of Agawam and its police officers regarding the Fair Labor Standards Act, U.S. District Court of Massachusetts Judge Ponsor affirmed the Town’s liability. His decision in the case of O’Brien v. Agawam (O’Brien III) (March 31, 2007) rejected four arguments raised by the Town.

First, the Court rejected the Town’s argument that regular rate or base pay for purposes of calculating overtime should exclude time spent on paid leave. “Plaintiffs’ ‘regular rates’ should be calculated by adding their annual salaries, wage augments, and roll call pay, then dividing that amount by the number of hours these payments are intended to compensate (1950 plus roll call time).” Second, the court affirmed that the officers should be compensated during their meal breaks, which are unscheduled and during which they remain “on call.” As a side note, the Court states that the Massachusetts meal break law, G.L. 149, §100, does not apply to municipalities.

In the third and most significant aspect of its decision, the Court sets forth the standard to calculate overtime liability for periods of “court time.” Under the FLSA, officers receive 1.5 their regular rate for hours worked beyond 40 (unless the employer affirmatively adopts a §7(k) period). Applying this principle to periods of court time can be tricky, given that many officers receive a minimum payment of 3-4 hours pay whether or not they work that time. In cases where the Town does not record actual time worked by officers at court, Judge Ponsor said that the employee first must show: 1) he “performed work for which he was improperly compensated”; and (2) sufficient evidence of “the amount and extent of that work as a matter of just and reasonable inference.” This is not an onerous task, noted the court, and the officers discharged their burden with an affidavits from officers estimating that they actually worked the minimum amount of time. At this point, the burden shifts to the town to refute the reasonableness of the employee’s claims. As the court noted, “the purpose of the burden-shifting scheme in cases like this is to prevent an employer from capitalizing on its failure to maintain records.” Here, the Town did not supply counter affidavits from court officials who could challenge its claims that officers did not the claimed time in court.

Finally, Judge Ponsor affirmed that the Town must pay liquidated damages, which means that Plaintiffs will receive double unpaid overtime compensation.

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Recent Decisions From The Massachusetts Labor Relations Commision

The Massachusetts Labor Relations Commission, which administers the public sector collective bargaining law for municipal and state employees, just released a batch of decisions from February 15 and March 15, 2007. For your consideration, we provide the following brief summary of the key decisions.

Board of Higher Education & AFCSME Council 93 (CAS-06-3631)

In this case, the Labor Relations Commission classifies Administrative Assistants to the Vice President of Student Affairs and the Vice President as "confidential employees" who are excluded from a bargaining unit of clerical employees. One assistant has access to the executive’s correspondence and phone calls regarding personnel decisions, including promotions, warning letters, requests for resignations, and the performance evaluations of department directors. She also examines personnel files and conducts research into personnel matters at executive’s request.

The other assistant is "involved in monthly budget meetings and directly handles the entry of budget numbers for the College’s operations and its budgetary planning," and has access to bank statements and documents. This involvement makes her "aware of the College’s budgetary discussions before final decisions or recommendations are publicized, including plans for layoffs or retrenchment of positions, assessment of departmental budget requests, funding for collective bargaining agreements, and the feasibility of proposed new positions." As a result, the Commission decides that this assistant, too, has significant access and exposure to confidential information concerning the impact of budgetary issues on labor relations matters.

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NAGE (SUPL-03-3012)

In this case, a laid off employee charged a union, NAGE, with violating its duty of fair representation for the manner in which she was bypassed during two recalls in 2002 and 2003. The Commission dismissed the DFR charge as untimely because the primary allegations concern activity in 2002 which was beyond six-month statute of limitations period. The Commission indicates that it would consider these allegations if they were connected to activity that occurred six months prior to the filing of the charge. It suggests evidence that might have saved the charge: 1) when the second recall occurred; 2) the date on which the charging party learned about that recall; 3) when charging party’s representative contacted the Union to ascertain why DOR had not recalled charging party for the second time; 4) to whom the representative spoke at the Union; and 5) the details of his discussions with the Union.

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Town of Weymouth/IAFF (MUP-05-4403 & MUPL-05-4516):

In these related cases, the Commission dismisses charges by a firefighter against town and union. The Commission found no evidence that involuntary transfer of firefighter over less senior employees constituted unlawful retaliation and intimidation as there was no evidence the employee engaged in protected, concerted activity, the town was aware of this activity, or the transfer was motivated by a desire to penalize or discourage protected activity.

The Commission also found that the union’s refusal to process the firefighter’s grievance did not violate its duty of fair representation. In the decision, the Commission added language that should serve as guidance for union decisionmaking and as boilerplate defense against baseless DFR charges:

"Rather, the information demonstrates that the Union considered and evaluated the merits of the Charging Party’s grievance, decided not to process the grievance on the Charging Party’s behalf, notified the Charging Party of its decision, and informed the Charging Party that he could process the grievance on his own up to the point of arbitration. Further, the Union considered the seniority argument proffered by the Charging Party and based its conclusion on its interpretation of the Agreement."

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State Police & SPAM (SUP-04-5104)

Here, the Commission refused to reconsider its earlier dismissal of an unfair labor practice concerning a charge of illegal transfer of shared bargaining unit work. The Commission held that its decision in a related case did not entitle the union to victory here. A previous ruling that the state police department illegally withheld information concerning shared work does not, without more, mean that employer committed an unfair labor practice on unilaterally changing a condition of employment.

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Mass Turnpike Authority & USWA (UPL-05-169):

In another victory for unions, the Commission affirmed its previous dismissal of a charge against union which concerned its behavior during bargaining about part of the bargaining unit while the parties awaited a decision on the unit’s appropriateness.

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BHE & AFSCME Council 93 (SUP-05-5177)

In this case, the Commission found that the Union failed to show that the parties reached an oral agreement about an inclement weather policy for non-essential personnel. As part of its ruling about the absence of an oral agreement, the Commission noted that there was no evidence that the Union informed its members about the existence of an alleged oral agreement.

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Worcester & NAGE
(MUP-05-4542).

Here, the Commission concludes that the employer lawfully bargained to impasse on dredger reorganization and therefore was entitled to unilaterally change a condition of employment. The decision notes that the union failed to act aggressively enough to indicate that further bargaining could be productive

"Even though the Union asserts that it was ‘prepared to engage in further negotiations,’ it did not request that the Employer reopen negotiations at any point following the exchange of final offers on April 5, 2005. Additionally, there was no appreciable lapse in time between the last negotiation and the Employer’s declaration of impasse on April 7, 2005. Finally, the Employer’s letter dated April 7, 2005 was a ‘clearly defined and communicated position on impasse,’ and the Union’s failure to rebut that position indicates that the parties had reached ‘a contemporaneous understanding of the state of negotiations.’ HECC, 23 MLC 16, 19 (1996). This ‘state of negotiations’ in the instant case was an impasse."

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